Judge Salvatore Sirna, Case Number: 23PSCV03141, Date: 2024-03-27 Tentative Ruling

Judge: Salvatore Sirna, Case: 23PSCV03141, Date: 2024-03-27 Tentative Ruling

The Court may change tentative rulings at any time. Therefore, counsel are advised to check this website periodically to determine whether any changes or updates have been made to the tentative ruling. Counsel may submit on a tentative ruling by calling the clerk in Department G at (909) 802-1104 prior to 8:30 a.m. the morning of the hearing.

Case Number: 23PSCV03141 Hearing Date: March 27, 2024 Dept: G

Defendants Kiewit Corporation, Kiewit-Parsons, Kiewit Infrastructure West Co., and Parsons Construction Group, Inc.’s Demurrer to Plaintiffs’ First Amended Complaint

Respondent: Plaintiffs Alicia Olivares, Stephanie Watkin, Amaris Violet Gutierrez, Abel Valentino Gutierrez, and Angelina Victoria Gallegos

Defendants Kiewit Corporation, Kiewit-Parsons, Kiewit Infrastructure West Co., and Parsons Construction Group, Inc.’s Motion to Strike Punitive Damages

Respondent: Plaintiffs Alicia Olivares, Stephanie Watkin, Amaris Violet Gutierrez, Abel Valentino Gutierrez, and Angelina Victoria Gallegos

TENTATIVE RULING

Defendants Kiewit Corporation, Kiewit-Parsons, Kiewit Infrastructure West Co., and Parsons Construction Group, Inc.’s Demurrer to Plaintiffs’ First Amended Complaint and Motion to Strike Punitive Damages are CONTINUED to a date to be determined at the hearing in Department G (Pomona).

Defendants’ counsel is also ordered to meet and confer with Plaintiffs’ counsel regarding the Demurrer and Motion to Strike and to file a supplemental declaration describing such meet and confer efforts at least nine (9) court days before the next scheduled hearing.

BACKGROUND

This is a wrongful death action arising from a motor vehicle collision. In November 2022, Alberto J. Gutierrez was the passenger of a 2006 GMC Sierra that was travelling eastbound on Route 66 in Glendora near the intersection of Hunters Trail. As a result of the allegedly narrow construction of the road, Alberto Gutierrez’s truck was forced off the road by a vehicle in the other lane and collided with a wall on the southside of the roadway. Alberto Gutierrez was killed after the impact caused the truck to flip over.

On October 10, 2023, Plaintiffs Alicia Olivares, individually and as successor in interest to Alberto Gutierrez; Stephanie Watkin, individually and as successor in interest to Alberto Gutierrez; Amaris Violet Gutierrez, by and through Watkin as guardian ad litem; Abel Valentino Gutierrez, by and through Watkin as guardian ad litem; and Angelina Victoria Gallegos, individually and as successor in interest to Alberto Gutierrez (collectively, Gutierrez Plaintiffs) filed a complaint against Defendants City of Glendora (the City), Los Angeles County Metropolitan Transportation Authority (LACMTA), the Metro Gold Line Foothill Extension Construction Authority (MGLFECA), Kiewit Corporation (Kiewit), Fernando Vasquez Barrera, and Does 1-200, alleging the following causes of action: (1) negligence, (2) dangerous condition of public property, (3) negligence per se, (4) loss of consortium, (5) wrongful death, and (6) survival.

On December 8, 2023, the Gutierrez Plaintiffs amended the Complaint to replace Doe 1 with Defendant Kiewit-Parsons and Doe 2 with Defendant Kiewit Infrastructure West Co. (Kiewit West). On December 11, the Gutierrez Plaintiffs amended the Complaint to replace Doe 3 with Defendant Parsons Construction Group Inc. (Parsons).

On February 2, 2024, the Gutierrez Plaintiffs filed a First Amended Complaint (FAC) against the same defendants alleging the same causes of action.

On February 20, 2024, LACMTA filed a cross-complaint against Vasquez Barrera and Does 1-10, alleging causes of action for (1) indemnification, (2) apportionment of fault, and (3) declaratory relief. On the same day, MGLFECA also filed a cross-complaint against Vasquez Barrera and Does 1-10, alleging causes of action for (1) indemnification, (2) apportionment of fault, and (3) declaratory relief.

On March 5, 2024, Kiewit, Kiewit-Parsons, Kiewit West, and Parsons (collectively, Kiewit-Parsons Defendants) filed the present demurrer and motion to strike.

On March 6, 2024, the Kiewit-Parsons Defendants filed a cross-complaint against Vasquez Barrera and Roes 1-50, alleging causes of action for (1) equitable indemnity, (2) implied indemnity, (3) comparative fault, and (4) declaratory relief.

A hearing on the present demurrer and motion to strike is set for March 27, 2024, along with an OSC Re: Failure to File Proof of Service and case management conference.

ANALYSIS

The Kiewit-Parsons Defendants demur to the Gutierrez Plaintiffs’ first cause of action (negligence), second cause of action (dangerous condition of public property), third cause of action (negligence per se), fourth cause of action (loss of consortium), and fifth cause of action (wrongful death). For the following reasons, the court finds parties did not adequately meet and confer.

Legal Standard

Pursuant to Code of Civil Procedure section 430.41, subdivision (a), prior to filing a demurrer, “the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” This section further provides that “the demurring party shall identify all of the specific causes of action that it believes are subject to demurrer and identify with legal support the basis of the deficiencies.” (Code Civ. Proc., § 430.41, subd. (a)(1).)

While Code of Civil Procedure section 430.41, subdivision (a)(4) makes clear failing to meet and confer is not grounds to overrule a demurrer, courts “are not required to ignore defects in the meet and confer process” and if the court determines “no meet and confer has taken place, or concludes further conferences between counsel would likely be productive, it retains discretion to order counsel to meaningfully discuss the pleadings with an eye toward reducing the number of issues or eliminating the need for a demurrer, and to continue the hearing date to facilitate that effort.” (Dumas v. Los Angeles County Bd. of Supervisors (2020) 45 Cal.App.5th 348, 355 & fn. 3.)

Discussion

In this case, the Kiewit-Parsons Defendants’ counsel filed a declaration suggesting counsel met and conferred orally with the Gutierrez Plaintiffs’ counsel on January 24, 2024, with regards to the original Complaint and a proposed FAC. (Fersch Decl., ¶ 12-13.) But counsel does not describe any code-compliant attempt to meet and confer after the Gutierrez Plaintiffs filed the operative FAC on February 2. Accordingly, the court finds a continuance of the hearing on the Kiewit-Parsons Defendants’ demurrer and motion to strike is appropriate.

CONCLUSION

Based on the foregoing, the Kiewit-Parsons Defendants’ demurrer and motion to strike are CONTINUED to a date to be determined at the hearing in Department G (Pomona).

The Kiewit-Parsons Defendants’ counsel is also ordered to meet and confer with the Gutierrez Plaintiffs’ counsel regarding the Demurrer and Motion to Strike and to file a supplemental declaration describing such meet and confer efforts at least nine (9) court days before the next scheduled hearing.